Mr. Y Shanmuga Vs Ms. Kumari Poornima K

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1 - NC: 2025:KHC:38682 MFA No. 6419 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF SEPTEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 6419 OF 2025 (CPC)

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BETWEEN:

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MR. Y SHANMUGA AGED ABOUT 55 YEARS S/O MR. DHARRMLINGA REDDY RESIDING AT NO. 2, VITTAL VALUE 1ST CROSS, BIKASIPURA DODDAKALLASANDRA BANGALORE- 560 062

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…APPELLANT

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(BY SRI. BALARAM M. L., ADVOCATE)

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AND:

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MS. KUMARI POORNIMA K AGED ABOUT 55 YEARS D/O MR. KENCHAIAH RESIDING AT BANGALORE 560 078

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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THE CHIEF COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE A STATUTORY CORPORATION UNDER BBMP ACT, 2020 ADDRESSED AT HUDSON CIRCLE, BANGALORE-560 002

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THE ASSISTANT EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE UTTARAHALLI, SUB-DIVISION BBMP WARD NO. 197, VASAMTHAPURA, UTTARAHALLI, BANGALORE- 560 061

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…RESPONDENTS

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(BY SMT. PRIYANKA YAVAGAL., ADVOCATE)

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2 - NC: 2025:KHC:38682 MFA No. 6419 of 2025

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HC-KAR

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THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.01.08.2025 PASSED ON IA NOS 1 AND 5 IN O.S.NO.6968/2024 ON THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CCH-27 BENGALURU, REJECTING THE IA.NO. 1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AND ALLOWING THE IA.NO.5 FILED UNDER ORDER 39 RULE 4 R/W SEC.151 OF CPC, 1908.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The appeal is filed by the appellant/plaintiff questioning the order dated 01.08.2005 passed on I.A.Nos.1 and 5 in O.S.No.6968/2024 by the Court of XII Additional City Civil Judge, Bangalore (CCH-27).

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The plaintiff has filed suit for mandatory injunction to remove the unauthorised construction and permanent injunction not to interfere with the suit schedule property as the defendant No.1 is constructing the building without obtaining sanctioned plan and in this regard, despite the order passed by defendant No.2-BBMP for stopping the construction, defendant No.1 has

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3 -

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NC: 2025:KHC:38682 MFA No. 6419 of 2025

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HC-KAR

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continued the construction. Therefore, filed the suit for above relief.

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Defendant No.1 has filed written statement and contended that construction of building is complete according to the sanctioned plan.

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Plaintiff has filed application for temporary injunction, which came to be dismissed on the reason that the Civil Court has no jurisdiction to entertain any suit against the BBMP, when they have taken action as per Section 248 of the BBMP Act, 2020.

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5. Heard the arguments from both sides and

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perused the materials furnished in the appeal.

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The following points arises for consideration of

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this Court are:

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(i) Whether, under the facts and circumstances of the case, the plaintiff makes out prima facie case on the basis of the materials produced before the trial court?

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(ii) Whether, under the facts and circumstances of the case, the plaintiff make out case of balance

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4 - NC: 2025:KHC:38682 MFA No. 6419 of 2025

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HC-KAR

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of convenience on the basis of the materials produced before the trial court so as to grant an order of temporary injunction?

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(iii) Whether, under the facts and circumstances of the case, if an order of temporary injunction is not granted then plaintiff would suffer any irreparable loss or injury?

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It is the case of the plaintiff that without leaving

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set back area, defendant No.1 is constructing the building and without obtaining the building sanction plan from BBMP and in spite of an order passed by the BBMP authorities to stop construction and demolish the illegal construction, defendant No.1 has continued the construction. In spite of it, when the suit is filed but the trial Court only on the reason that the civil court does not have jurisdiction. Hence, by observing that the plaintiff has

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not made out a prima facie case for grant of temporary injunction, had dismissed the application.

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On the other hand, learned counsel for defendant No.1 submitted that the suit is not maintainable, when the BBMP authorities have initiated

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5 - NC: 2025:KHC:38682 MFA No. 6419 of 2025

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HC-KAR

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action for demolition and the observation made by the trial Court that suit is not maintainable is correct. Therefore, justified the order passed by the trial Court.

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The suit is filed for permanent injunction against the defendants that defendant No.1 on the northern side of the building without leaving the required set back area of 1.5 meters has constructed the building. Due to such construction, the entire bed room, kitchen, pooja room of the plaintiff situated at southern side is totally blocked by air and hence they remained in dark. Therefore, the right of the easement of the plaintiff is affected by such illegal construction of defendant No.1. Therefore, filed the appeal.

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The material placed before the trial Court prima facie go to show that defendant No.1 has not obtained sanctioned plan from the Competent Authority and without obtaining sanction plan has started construction. In this regard, upon complaint made by the plaintiff against

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6 - NC: 2025:KHC:38682 MFA No. 6419 of 2025

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HC-KAR

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defendant No.1 before defendant Nos.2 and 3 authorities, the defendant Nos.2 and 3 are being authorities have passed order by observing that defendant No.1 is constructing the building without sanction plan. Further, the officials of defendant Nos.2 and 3 have made certain instruction and found that without sanction plan, defendant No.1 is constructing the building unauthorizedly and therefore, directed defendant No.1 to stop further construction which can be found in the order extracted by the trial Court and this fact is not disputed by defendant No.1. Further, defendant Nos.2 and 3 have passed order on 09.08.2024 by invoking Section 248(1) of the BBMP Act directing the defendant No.1 to stop the construction of the building and also demolish the unauthorised construction. Therefore, it is observed by defendant Nos.2 and 3 authorities that defendant No.1 without obtaining building sanction plan and permission from the BBMP, unauthorizedly and illegally constructing the building. When this being the prima facie case made out by the

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7 - NC: 2025:KHC:38682 MFA No. 6419 of 2025

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HC-KAR

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plaintiff that defendant No.1 is putting up construction illegally and unauthorisedly, the trial Court only on the reason that the action taken by the BBMP under Section 248(1) of the Act, civil suit is not maintainable is completely perverse approach of the trial Court. When the plaintiff has complained that his easement right is affected by unauthorised construction of defendant No.1 and complaint is also lodged before the BBMP authorities against defendant No.1 and defendant Nos.2 and 3 have observed that the construction is unautorised construction without any sanction plan, permission and illegal one then the plaintiff has remedy to file civil suit before the Civil Court. Taking action against defendant Nos.2 and 3 authorities is different aspect. But observation made by the trial Court that suit is not maintainable is not correct. Therefore, the plaintiff has made out a prima facie case and balance of convenience and the trial Court ought to have granted an order of temporary injunction but dismissed the application.

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8 - NC: 2025:KHC:38682 MFA No. 6419 of 2025

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HC-KAR

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Therefore, the plaintiff has made out prima

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facie case and balance convenience and if order of temporary injunction is not granted, then the plaintiff would suffer more injury and loss. Therefore, the plaintiff is entitled an order of temporary injunction. Accordingly, I answer points 1 to 3 in the affirmative . Hence, I proceed to pass the following:

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ORDER

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i) The appeal is allowed .

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ii) The order dated 01.08.2025 passed on I.A.Nos.1 and 5 in O.S.No.6968/2024 on the file of the XII Additional City Civil Judge, Bangalore (CCH-27) is hereby set-aside.

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iii) The order of temporary injunction is granted against defendant No.1, her agents, servants/ workmen or anybody directing her not to put up any further construction, illegal and unauthorised construction on the northern side of the schedule 'B' property pending disposal of the suit.

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SD/-

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(HANCHATE SANJEEVKUMAR) JUDGE

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KA

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List No.: 1 Sl No.: 30

Mr. Y Shanmuga v. Ms. Kumari Poornima K

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Mr. Y Shanmuga v. Ms. Kumari Poornima K

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